* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 7 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

TERESA S. BEALL; VICTORIA A. LUKAS; JUDITH A. TRUETT,

Plaintiffs-Appellants, and VICKI L. MOORE,

Plaintiff,

v. TERRY MCGAHA, an officer of the United States Forest Service, in his individual capacity,

Defendant-Appellee. No. 96-2095 (D.C. No. CIV-94-1327-JC) (D. N.M.)

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. -2- Plaintiffs-appellants Teresa S. Beall, Judith A. Tr uett, and Victoria A. Lukas, appeal the district court’s grant of summaryjudgment in favor of defendant Terry McGaha, on their civil rights claim s brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 392 (1971). Plaintiff Vicki L. Moore does not appe al the court’s judgment. Because there are no material facts in dispute and defendant is entitled to judgment as a matter of law, we affirm. 1 On February 22, 1994, the National Forest Service i ssued Special Closure Order 06-125, which prohibited, inter alia, being “ publicly nude” in the areas of the upper and lower San Francisco Hot Springs, in the Gila National Forest in New Mexico. A copy of the special closure order, w ith both a legal description and a map of the closed areas, was posted at the ma in entryway to the hot springs area, on Forest Service Road 519, as well as at the district office and at the Gila National Forest Supervisor’s office. No other post ing was made. On March 3, 1994, plaintiffs entered the San Franci sco hot springs area on horseback, via private land. They did not enter th e area by Forest Service Road 519, and did not see the posted order. Plaintiffs decided to bathe at the lower San2 There is some question whether plaintiff Beall, a s easonal employee for the

Glenwood Ranger District, had notice that the lowerhot springs were closed to public nudity. Both the closure order issued in 19 91 and the order issued in 1994 were posted at the Glenwood district office. Furth er, the Glenwood office had specifically questioned and verified that the lowerhot springs were included within the closure order. See R. doc. 28, ex. A, p. 1, ex. D, pp. 11, 25, doc. 3 1, ex. E, p. 26. -3- Francisco hot springs, which they mistakenly consid ered to be a “clothing optional” hot springs. 2
Plaintiffs disrobed and immersed themselves in wais t-deep water. Defendant, a Forest Service law enforcement officer , discovered plaintiffs during his patrol of the hot springs. Believing that theyhad violated the special closure order, defendant directed plaintiffs to exit the water and show him identification. Plaintiffs initially refused to comply, and after asomewhat heated discussion, defendant threatened to take plaintiffs to jail. A fter several requests from plaintiffs, defendant turned his back to allow them to exit the hot springs, and did so again after turning around before plaintiffs wer e fully clothed. Defendant did not have physical contact with plaintiffs or search their belongings. After plaintiffs were clothed, defendant issued each of t hem a warning for being publicly nude. Plaintiffs brought this civil rights action againstdefendant, alleging that the officer’s actions constituted an unreasonable seizu re and search which violated their right to privacy. The district court granted defendant summary judgment on3 It is not clear that probable cause was required to justify the seizure in this

case. The contact between defendant and plaintiffs , being of limited duration and scope, and resulting only in the issuance of a warn ing, appears not to have been an “arrest” requiring probable cause. See Hayes v. Florida , 470 U.S. 811, 815-16 (1985) (noting that “arrest” occurs only when polic e procedures so qualitatively and quantitatively intrusive to suspect’s freedom o f movement and privacy interests as to require full protection of Fourth A mendment, such as forcible removal of person and transportation to police stat ion for investigation). Instead, the detention was more akin to an investig ative detention, which is justified if the officer has a reasonable suspicion that the detainee has committed, is committing, or is about to commit a crime. See Berkemer v. McCarty , 468 U.S. 420, 437, 439-40 (1984) (holding that traffic stop, in which detention is presumptively temporary and detainee is usually rel eased after citation issued, is akin to “Terrystop,” requiring only reasonable suspicion); Proch aska v. Marcoux , 632 F.2d 848, 852 (10th Cir. 1980) (applying reason able suspicion standard to wildlife conservation officer’s stop of boat owner for failure to have current registration sticker and issuance of citation for o perating vessel without proper safety equipment). Because no one has argued that this standard applies, and satisfaction of the higher probable cause standard necessarily entails satisfaction of the reasonable suspicion standard, we decide thi s case based on the existence of probable cause to support the seizure. -4- the ground that his conduct did not violate any of plaintiffs’ constitutional rights, or, in the alternative, because he was entitled to qualified immunity for his actions. On appeal, we consider plaintiffs’ arguments that d efendant lacked probable cause 3 to seize and search them, and that the manner in w hich he conducted the seizure and search unreasonably violated their privacy rights. We do not address their ineffective assistance of coun sel claim, because there is no constitutional right to counsel in a civil action, and because this court is not the-5-

appropriate forum in which to initiate a private ac tion against their former attorney. See MacCuish v. United States , 844 F.2d 733, 735 (10th Cir. 1988) (holding there is no constitutional right to counse l in a civil action, and noting that malpractice action is appropriate remedy). “The Fourth Amendment protects people from unreason able government intrusions into their legitimate expectations of pr ivacy.” United States v. Austin , 66 F.3d 1115, 1118 (10th Cir. 1995) (quotations omi tted), cert. denied , 116 S. Ct. 799 (1996). A seizure or search may be held unreas onable if a law enforcement officer lacked probable cause to justify the intrus ion, or if the officer carried out the seizure and/or search in an unreasonable manner . See Tennessee v. Garner , 471 U.S. 1, 7-8 (1985); Franklin v. Foxworth , 31 F.3d 873, 875 (9th Cir. 1994). We review the district court's probable cause determination de novo. See Ornelas v. United States , 116 S. Ct. 1657, 1663 (1996) (holding determinati ons of probable cause and reasonable suspicion to be revie wed de novo, but findings of historical fact to be reviewed only for clear error ). The reasonableness of a seizure or a search is question of law which is als o reviewed de novo. See United
States v. Moore , 91 F.3d 96, 97 (10th Cir. 1996). Lastly, the dis trict court's qualified immunity determination at the summary jud gment stage is reviewed de novo, viewing the evidence in the light most favora ble to the nonmoving party.
See Mick v. Brewer , 76 F.3d 1127, 1134-35 (10th Cir. 1996).-6- I. Probable Cause for Seizure and Search
An officer has probable cause to seize a suspect wh en the facts and circumstances within the officer’s personal knowled ge, or of which he has reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution to believe that an offense ha s been or is being committed.
See United States v. Maher , 919 F.2d 1482, 1485 (10th Cir. 1990). Probable cause to conduct a search exists when the officer b elieves a crime has been committed and that evidence of the crime will be fo und in the place to be searched. See Franz v. Lytle , 997 F.2d 784, 787-88 (10th Cir. 1993). Based on the undisputed facts, we conclude that defendant ha d probable cause both to seize and to search plaintiffs. We consider first whether defendant lacked probable cause to believe plaintiffs were “publicly nude,” because their priv ate areas were “covered” when he first saw them. The term “publicly nude” is def ined by forest service regulation as follows: Publicly nude means nude in any place where a person may be observed by another person. Any person is nude if the person has failed to cover the rectal area, pubic area or geni tals. A female person is also nude if she has failed to cover bothbreasts below a point immediately above the top of the areola. Eac h such covering must be fully opaque. 36 C.F.R. § 261.2.-7-

Plaintiffs allege that when defendant arrived at th e hot springs, their private areas were obscured by the murky water, and their b reasts were hidden behind their arms and knees. Defendant, on the other hand , alleges that the water was sufficiently clear to see through, and that plainti ffs obscured their breasts only after he arrived. Because this case was decided atthe summary judgment stage, we accept as true plaintiffs’ version of the disput ed facts. See Eastman Kodak Co. v. Image Technical Servs., Inc. , 504 U.S. 451, 456 (1992). Even if, upon defendant’s arrival, plaintiffs were not “publicly nude,” as defined, we conclude that the officer had probable cause to believe plaintiffs had been “publicly nude” when entering the hot spring. It was reasonable to believe that plaintiffs were unclothed, based on defendant’ s observation of their clothing at the edge of the spring and the undisputed eviden ce that plaintiffs’ breasts were above the water line. These observations were corr oborated by statements by one of the plaintiffs that they were not violating the law because he could not see them nude and that they could be naked on public la nd unless it was posted otherwise. See R. I, doc. 28, ex. D at 29, 30, 38; doc. 31, ex. K at 69, ex. N at 56. It was also reasonable to believe that plaintiffs h ad been nude when entering the hot spring, as their clothes were dry. Lastly, it was reasonable to believe that the hot s prings were a “place where a person may be observed by another person.” 36 C. F.R. § 261.2. Plaintiffs were-8-

on public land, in a recreation area open to the ge neral public. See, e.g. , Hawaii v. Rocker , 475 P.2d 684, 688 (Haw. 1970) (holding that beachisolated by hill and ledge, away from view of road and adjoining beaches , but accessible by path and used by twenty to twenty-five people over two-monthperiod, was a public place because defendants’ nudity likely to be seen by a n umber of casual observers). We turn to plaintiffs’ argument that defendant lack ed probable cause to believe they violated the closure order, because he knew the order had not been properly posted. Federal regulations require that an order be displayed “in such locations and manner as to reasonably bring the pro hibition to the attention of the public.” 36 C.F.R. § 261.51. The order was posted at the Glenwood Ranger District Office, the Gila National Forest Superviso r’s Office, and on a Forest Service bulletin board at the entrance to the hot s prings on Forest Service Road 519. Based on the undisputed evidence that despite other methods of access, the primary method of accessing the lower hot springs w as via Forest Service Road 519, the district court found the order was posted properly. See R. I, doc. 28, ex. A at 1 (“Forest Service Road 519 . . . is the only access road leading to the hot springs area”), ex. D at 6 (estimating that 99.9 pe rcent of people entering hot springs did so via Forest Road 519), ex. E at 12, 1 4, 17 (testifying that although other methods existed, bulk of the hot springs traf fic entered by passing the4 Plaintiffs argue that defendant’s act of checking t he posting after the

seizure indicates that he did not know whether the order was properly posted when he seized them. The uncontradicted summary ju dgment evidence shows, however, that before the date of seizure, defendantunderstood that the order was posted at the entrance to the hot springs. See R. I, doc. 34, ex. B. -9- bulletin board, including four-wheel drive clubs), ex. G at 4-5, 7 (testifying 99.9 percent of people going to hot springs used road). Plaintiffs argue that the district court erred in m aking this determination, and that their evidence of alternative methods of a ccess, combined with statements by defendant’s supervisors that the orde r may not have been properly posted, create a factual question as to the reasona bleness of the posting. We disagree. Even if plaintiffs were correct, however , “qualified immunity shields [law enforcement officers] from suit for damages if a reasonable officer could have believed [the search and seizure] to be lawful , in light of clearly established law and the information the . . . [officer] possess ed.” Hunter v. Bryant , 502 U.S. 224, 227 (1991) (quotations omitted). Defendant kn ew that the order had been posted at the main entrance to the hot springs, 4 that the vast majority of visitors used this entrance to access the lower hot springs, that the order was posted at the same place as a prior closure order, and that his s uperiors had decided where to post the notice. We find no clearly established law requiring the officer to second-guess his superiors’ judgment regarding the proper place of posting.-10-

Plaintiffs also argue that defendant lacked probabl e cause to order them out of the hot spring, thereby effecting an unlawful se arch. We conclude that defendant’s order was proper, either as a search oras an order incidental to the seizure. Based on the information available, defen dant had probable cause to believe both that plaintiffs had been publicly nude , and that a search would reveal evidence of plaintiffs’ nudity. See Franz , 997 F.2d at 787-88.

II. Reasonableness of Seizure and Search
Plaintiffs argue that defendant’s order to exit the hot springs in his presence, under threat of incarceration, was unreas onable, in light of the nature of the offense and the limited risk that they were car rying weapons or contraband. They argue also that defendant searched them in an unreasonable manner by staring at their breasts and genitals while they dr essed. The reasonableness of a seizure or a search receive s special scrutiny when a suspect’s constitutional right to bodily privacy is implicated. See, e.g. , Whren v. United States , 116 S. Ct. 1769, 1776 (1996) (explaining that whi le probable cause generally renders searches and seizures reasonable, special balancing analysis needed when seizure or search is “conducted in an e xtraordinary manner, unusually harmful to an individual’s privacy or . . . physical interests”); Cottrell-11-

v. Kaysville City , 994 F.2d 730, 734 (10th Cir. 1993) (weighing needfor strip search against “grave invasion of privacy it entail s”). We begin by analyzing whether defendant’s order to exit the hot spring, in itself, exceeded the bounds of reasonableness. A t emporary seizure carries with it authority to order the detained individuals to move from a particular area, if reasonably necessary. See, e.g. , Maryland v. Wilson , 117 S. Ct. 882, 885-86 (1997) (holding that officer making a traffic stop may, as a matter of course, order passengers to exit vehicle pending completionof stop). The reasonableness of such an intrusion “depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Id. at 885 (quotations omitted). Here, the public interest in effecting plaintiffs’ seizure justified defendant’s order in several respects. To issue plaintiffs a v iolation notice or a warning, defendant was required to return to his truck, park ed out of sight, approximately one hundred yards away. See R. I, doc. 31, ex. E, pp. 26-27, ex. O, p. 48. Th us the order to exit the water prevented any potential escape of the suspects, by requiring them to accompany defendant to his vehicl e. Defendant’s order also facilitated plaintiffs’ seizure by enabling them to produce identification, and by allowing completion of the citation procedure in a dry environment. Finally,-12-

defendant’s order prevented the possibility of futu re exposure of plaintiffs’ nudity to any unsuspecting visitors. Balanced against these public interests is the addi tional intrusion into plaintiffs’ privacy occasioned by defendant’s order . Although the intrusion was certainly greater than that experienced by the pass engers in Wilson , it was minimized by the officer’s act of turning his back to allow plaintiffs to exit the water and get dressed. See R. I, doc. 31, ex. N at 56, ex. O at 46-47; doc. 3 4, ex. C, p. 36. Further, as defendant had probable cause to search plaintiffs, the requirement that they expose themselves did not intrude on a reasonable expectation of privacy. Under these circumstances, defendant’s order that plaintiffs exit the water was not unreasonable. We conclude also that the manner in which the seizu re was conducted was reasonable. A detention “may be unreasonable if i t is unnecessarily painful, degrading, or prolonged, or if it involves an undue invasion of privacy.” Franklin , 31 F.3d at 876. Such an unreasonable detention w as found in Franklin , when officers removed a gravely ill man, who was no t a suspect, from his bed, and required him to sit handcuffed for two hours, w ith his genitals exposed to twenty-three armed officers. Id. at 876-77. In contrast, the court in Crosby v.
Hare , 932 F. Supp. 490, 494-95 (W.D.N.Y. 1996), found n o constitutional violation when plaintiff was required to remain in a bathroom, naked, under the-13-

supervision of a female officer but within view of male officers, until a protective sweep of the house was completed. The court relied on the fact that the detention was of short duration, that the detainee was somewh at shielded from public view, that she was suspected of committing the crimes und erlying the search of the residence, and that she was not made to strip but m erely to remain naked until the sweep was completed. Id. at 495. The facts of this case are much closer to those in Crosby . Although defendant’s conduct required plaintiffs to expose themselves, he did not require them to strip, as they were already naked. Because plaintiffs were permitted to dress immediately, the length of their exposure was minimal. Further, unlike the detainee in Franklin , plaintiffs were not innocent bystanders, but were suspected of the criminal activity that precipitated their de tention. The degree of intrusiveness into plaintiffs’ privacy was also min imized by defendant’s act of turning his back. Finally, defendant’s threat of i ncarceration occurred only after plaintiffs refused to provide identification or coo perate with the officer. See R. I, doc. 31, exs. J, K & O. This threat was not unreas onable. See United States v. Buehler , 793 F. Supp. 971, 975-76 (E.D. Wash. 1992) (holdi ng fisherman who refused to provide identification was guilty of int erfering with park ranger’s authority to issue citation). We conclude on this record that plaintiffs were not seized in an unreasonable manner.5 Although plaintiffs allege that defendant stared attheir breasts and genitals,

the summary judgment evidence shows only that defen dant viewed the breasts of one of the women when he turned around before she f inished dressing. See R. I, doc. 31, ex. N (testimony by plaintiff Lukas that s he was dressed when defendant turned around), ex. O, p. 47 (testimony by plaintif f Truett that defendant turned his back before plaintiffs exited water, and that w hen he turned around prematurely she was not wearing a top). In light o f the undisputed evidence that defendant again turned around to permit plaintiffs to finish dressing, we conclude no factual issue was created as to the reasonablene ss of the manner in which defendant conducted the search. -14- Similarly, we conclude that any search conducted bydefendant was not performed in an unconstitutional manner. A search may be unreasonable if the privacy invasion outweighs the need for the search, considering “the scope of the intrusion, the manner in which it was conducted, th e justification for initiating the search, and finally, the place where the search too k place.” Cottrell , 994 F.2d at 734. Here, justification for initiating a search w as present: defendant had a “clear indication” that plaintiffs were nude and th at their nudity would be quickly and accurately revealed upon exiting the water, and further, that it would be difficult to prove their nudity by other means. Se e Winston v. Lee , 470 U.S. 753, 762-63 (1985) (analyzing strength of state interestto determine if search justified). Moreover, the manner in which the sear ch was conducted, the place where it occurred, and its scope, were minimally in trusive. 5-15- III. Additional Privacy Claims
Plaintiffs also appear to argue that because the ho t springs were secluded, they were “private,” and that defendant invaded the ir privacy by approaching and seizing them. They argue that they had a legitimat e expectation that their privacy would not be disturbed by someone requiring them to exit the water and expose their nudity, based on many years of using the hot spring as a “clothing optional” bathing area. Plaintiffs were not bathing in a pri vate place, however, but on public land, in a recreational area open to the gen eral public. Finally, plaintiffs Beall and Lukas, who work as se asonal employees for the Forest Service, argue that their privacy rights wer e violated by defendant’s act of informing other Forest Service employees that plaintiffs had been issued a warning for being publicly nude. Plaintiffs did no t, however, have a constitutionally protected privacy interest in suchinformation. See Nilson v. Layton City , 45 F.3d 369, 372 (10th Cir. 1995) (“[G]overnment disclosures of arrest records, judicial proceedings, and informati on contained in police reports, do not implicate the right to privacy”) (citations omitted). The judgment is AFFIRMED. The mandate shall issue forthwith. Entered for the Court Carlos F. Lucero Circuit Judge